Yet Another Judge Blasts Copyright Trolling Operation

from the down-goes-another-one dept

While copyright trolling cases keep popping up, it's become quite impressive how many courts are dumping such cases often while slamming the trolls' strategy. It's now happened again. A judge in Massachusetts has called out a troll for its "lack of interest in actually litigating." The case involves porn company Patrick Collins, Inc., which has been involved in a ton of these trolling cases -- including some of those linked above -- along with another company, Discount Video Center, represented by the same lawyer.

The full ruling (pdf) is worth reading. Basically, the judge (like many others) is completely onto Patrick Collins and the fact that it wants to use the court system as a part of its business model rather than for a legitimate judicial purpose. After noting that in an ordinary case against an unknown defendant, the purpose of seeking early discovery is to find out how to amend a lawsuit to include an actual named defendant. But here, the company seems to have no interest of doing such an amended filing since, instead, it just wants contact info to send out "pay up settlement" letters.

Ordinarily, a Plaintiff suing a John Doe Defendant would seek narrow discovery ex parte in order to identify the Doe Defendant for purposes of filing a motion to amend the Complaint to name the Doe, followed by service of the Complaint. The Plaintiffs in these cases evidence no interest in such a pursuit. They have not proposed a discovery plan aimed at identifying the infringers they have sued. Rather, the Plaintiffs request that the Court order disclosure of the third-party subscribers' names so that the Plaintiffs might settle or dismiss their cases on an informal basis. The discovery they seek cannot provide the Plaintiffs with sufficient information to identify the Doe Defendants. Nor have the Plaintiffs requested leave in their submissions to take depositions, either orally or upon written questions – the only discovery mechanism available to Plaintiff under the Federal Rules of Civil Procedure when seeking information from third parties, as is the case here....

... the omission of any written request for depositions in the Plaintiffs' renewed motions for discovery speaks volumes about the Plaintiffs' lack of interest in actually litigating these cases. That the Plaintiffs' counsel now assert a willingness to take depositions if that is the only option ... only confirms that the Plaintiffs' interest in litigating the cases, or in following the governing law, arises only in response to the Court's express command.

Not only have Plaintiffs failed to articulate a discovery plan that would lead to identifying the infringers they have sued, but the Plaintiffs cannot even articulate the specific information they need or require in order to identify the infringers (or, to determine that such
identification is not reasonably possible).

Yeah, the judge isn't pleased. He explains that their plan to get the names and then "figure out the rest" through settlement letters "is unacceptable." Also not good for Patrick Collins -- back in July, its lawyer had told the court that it would be filing actual lawsuits against individuals the following week... but "no such lawsuits against individual defendants were subsequently filed." In other words, the company was misrepresenting its intentions to the court -- a big no-no.

It doesn't end there. The judge calls out Discount Video Center for seeking to "harass" a defendant and also engaging in judge shopping:

With respect to John Doe No. 22..., the Plaintiff Discount Video has stated an intent to dismiss Doe No. 22 from the pending action and file a new, separate individual complaint against this Doe, even though it does not know the identity of the infringer. Such an action smacks of an bad faith effort to harass the third-party subscriber by causing him or her to expend further legal fees in a brand new action, which would merely repeat all that has occurred to date. The Federal Rules specifically address this situation and authorize an award of fees and costs.... The course of action the Plaintiff has stated it intends to pursue also suggests an improper effort to engage in judge shopping and
evidences a disregard for the Court's limited public resources.

Finally, the judge calls the plaintiffs out on the settlement letters they sent, noting that they falsely claim that the account holder has been sued, rather than the actual infringers, who may not be the same.

Finally, the Plaintiffs have repeatedly said one thing and done another. The Plaintiffs plainly sued only the infringers in these actions. Yet the Plaintiffs proposed and served notices upon the subscribers informing them they had been sued. The Plaintiffs' counsel stated to the
Court that in his opinion, subscribers are "always going to . . . be secondarily liable "..., but he also stated that he would not assert secondary liability claims against subscribers as such claims would not pass muster under Rule 11.3

Now, the Plaintiffs have filed lawsuits against subscribers asserting secondary liability on the theory that, upon information and belief, discovery will reveal the subscribers to have known of the infringement via their account, or, that discovery will show the subscribers to be the parent of an unemancipated minor between the ages of 7 and 18.... While those cases are not before the undersigned (though some are before the district judges assigned to the captioned cases), the Court may permissibly consider them in assessing the reliability and
veracity of counsel's statements. The Plaintiffs' counsel has also repeatedly said to the undersigned, and to other judicial officers of this Court, that he intends to litigate the claims he has brought. Yet to date, counsel has sued well in excess of one thousand Doe Defendants in this District, and as far as the Court is aware, he has never served a Complaint upon a single individual defendant.

What's amazing is that these rulings keep happening... and such cases keep getting filed as these trolls keep hoping to get a sympathetic (or clueless) judge to let them go through.

Thanks for the PDF

Well that's the thing about copyright, IP and patents: they're designed to encourage extortion and litigation. It's funny how many of the trolls don't actually want to go through the motions -- they're just interested in a quick settlement.

Unless our copyright system is fixed (with generous public oversight), abuse of the system will persist.

John Adams

If you follow the link to ArsTechnica, and follow the link to the original post about this order I wrote 8 days ago from there, I owe you some explanation of a joke — a John Adams collage:

The subject of Sorokin's lashing, a copyright troll Marvin "President Adams" Cable got his nickname after he compared his brave actions defending porn from evil bittorent pirates with ones by John Adams who defended English soldiers after the Boston massacre. This comparison caused a flurry of amusement among lawyers (who, naturally, kept serious, silent faces in public).

And a meme-grade phrase Your internet has been identified in infringing copyrights is indeed Marvin's phrase from a hearing (quoted in Judge Sorokin's order).

Horsemanure-- all law suits are business decisions

I don't know what planet you're living on, but only the very, very wealthy hire lawyers and file lawsuits because they're interested in asking the judge to settle a dispute about legal philosophy. Everyone else looks at the costs and the benefits of the going through the hassle and paying the lawyers.

These guys are engaged in a business. The pirates hurt the business. The rules of society are that the creator who holds the copyright gets to decide who makes copies. The business depends upon it.

There's a very simple way for the defendants to avoid the lawsuits: don't pirate. I don't have any sympathy for them. Once you step on someone else's rights, it turns into an argument on reparations.

There's never a perfect way to calculate the numbers. Not when the tort involves bodily harm. Why should it be any different in copyright. We chose these arbitrary numbers and the poor pirates are stuck with their hefty fines. Tough. Don't like it, don't pirate.

Re: Re: Horsemanure-- all law suits are business decisions

This. Pornographers may even lose copyright protection: more than one judge has already hinted on that.

To me pornographers who fall for trolls' lies are like kids: they were given a useful and complicated tool (copyright), but instead they abused it causing huge harm to the society. So society has no choice but to take this tool back. Simple.

Repeat after me: 'Accused does Not automatically equal guilty'.

Now normally I don't tend to wish ill luck on people, but I can't help but think you might change your tune if you ended up on the receiving end of one of these letters, and found yourself in the position of either paying what they demanded of you, or going to court to prove your innocence, knowing that even if you won you'd still be out a couple of thousand.

You seem to be under the hilariously naive assumption that the ones sending out the shakedown letters make sure that they actually have a case, or even a halfway passable amount of proof before they do so, when all they usually have, and all they care to gather, is a list of people who might have infringed.

They don't care if their targets are guilty or innocent, because they know that the threat of a lawsuit is, in almost all cases, enough to get people to cough up a couple of hundred just to avoid having to pay a couple of thousand in court.

Most telling of all is that in those cases where the accused do decide to take the matter to court to prove their innocence, extortion rackets like this suddenly cannot drop the case fast enough, proving that even they know they don't have enough real evidence to convict someone.

Look, everyone knows you don't care who is actually guilty in any case relating to copyright, as long as you get to yell 'Pirate!' at someone, but at least try and pause and think about it a bit before jumping in and defending the action of people running a modern day extortion racket.

Re: Horsemanure-- all law suits are business decisions

You mean the rules of law, not the rules of society. Social mores seem to see no issue with piracy, or it wouldn't be so prevalent. Instead, it is the vocal minority screaming about their government monopolies. We aren't really discussing 'rights,' because society hasn't acknowledged such a thing.

Re: Re: Horsemanure-- all law suits are business decisions

Re: Re: Re: Horsemanure-- all law suits are business decisions

Thank you for the undeniable proof. I'm going to believe you rather than my 100+ correspondents, most of whom had absolutely no clue what was going on when they wrote me. Sure I'm going reply all of them calling them liars.

Especially that 80+ y.o lady who went to Home Depot to by a lock, after a troll told her that it is her duty to lock up her Internet. She is a liar, ain't she?

Re: Horsemanure-- all law suits are business decisions

These guys are engaged in a business. The pirates hurt the business. The rules of society are that the creator who holds the copyright gets to decide who makes copies. The business depends upon it.

Ignoring the other problems for a moment, you are engaging in the fallacy that copyright trolling is an effort to stop piracy. It's self-evidently not. These guys only make money as long as they can accuse people of piracy. Do you really believe they want piracy to stop?

Their business model is not even litigation, it's the threat of litigation and public exposure.

So what you're saying is: copyright isn't a big deal,

need to get these complaints out of the court system... and just automate the process by going directly to ISPs... still with me here? -- And then since it's down to administrative level, after three "strikes", the ISP disconnects the "pirates" but they can appeal for, say, $75.

I'm trying to show that a thought process has already been followed to logical conclusions, and yet you believe the alternative is even worse! On this narrow measure, you contradict yourself by hanging on to the full court process while otherwise trying to reduce copyright to at most commercially administrated.

Now, if "licensing" were nearly automated (there's an effort to do so in the UK at least), then the whole payments objection would be overcome: Megaupload could host all it wanted because would be paying the regular rates to content owners. Everyone is paid, "money" pours into computerized accounts, all the grifters are happy because can then use the unearned "money" counters to demand actual goods from laborers...

BUT what screws up the gravy train is that some users won't pay! And until you deal with that basic principle, then we're stuck in this endless loop, clogging the courts just to discover who won't pay for the content they enjoy!

Re: So what you're saying is: copyright isn't a big deal,

ootb, get a grip on reality. Your argument is about a decade behind the present.

The digital age dawned and the distribution network for digital media merged with the communications network. You cannot persist in this delusion that "some users won't pay" is destroying the ecosystem.

It has always been that way.

Radio and Television proved that lots of users simply won't pay. That is why the users bought the high end hardware. They feel they have paid and it's up to the content creators to work out with the broadcasters how to monetize the content.

What screws the system up isn't the unwillingness of the users to buy, it's the greed of the gatekeepers and their overvaluing of their precious content. It's really not worth what they think it is any more, so it's time to trade those dollars for trillions of digital dimes.

Re: So what you're saying is: copyright isn't a big deal,

Your argument sounds like the argument in support for DRM. Because we might be losing money, we therefore deserve to make the customer experience for every legitimate customer a living hell.

Copyright doesn't "matter" because these idiots are compromising it. Something that is frequently showing up is that alleged Doe infringements have taken place before a company has secured the copyrights on the film.

If the argument of copyright maximalists states that laws like SOPA are due to pirates "having their binky taken away", then the same should follow for rightsholders. Abuse copyright enough and you'll have that taken away.

Re: So what you're saying is: copyright isn't a big deal,

I have real difficulty in following your point sometimes, so forgive me if I got this wrong...

I'm trying to show that a thought process has already been followed to logical conclusions, and yet you believe the alternative is even worse!

This smacks of a false dichotomy. Are you saying that there's only two choices here? Either the courts are used as a tool of extortion or the ISPs are used as a tool of extortion?

Perhaps another alternative is to stop the extortion. The objections aren't that pirates suffer consequences. The objections are that these mechanisms are being used to get money from people without real regard as to whether or not they are guilty of piracy.

Re: So what you're saying is: copyright isn't a big deal,

Get over it. Entertainment is a luxury industry and despite the noise you all make, does not matter. That's right, all of these entertainers, creators, gatekeepers, etc. could die tomorrow and although there would be a lot of sad people, the world would continue to spin.

Re: So what you're saying is: copyright isn't a big deal,

If I am ACCUSED of infringing that DOES NOT PROVE (or even mean) that I DID infringe.

So let me get this right, you want to:

1. Trample on the privacy rights of individuals who may, or may not have done anything that infringed.

2. Involve a third party, as a 'collection agent' (the ISP)

3. Have the ISP turn away a paying customer because that customer MIGHT be infringing.

All so some super rich music company can get even more of what it already has entirely to much of.

You sir are a complete and total idiot! In the name of giving some IP holder some MINISCULE CASH you are willing to, violate my rights to privacy, my right to due process, and deprive the ISP of a paying customer.

Do you know ANYTHING about the law in the good old USA. Here you are INNOCENT until PROVEN GUILTY IN A COURT OF LAW.

Your supposed solution says I am guilty, period. It then goes on to inflict collateral damage by depriving a 3rd party (the ISP) of a paying customer. Somehow in your deluded world this is fair.

Maybe, and I know this is probably a bit more than you feeble mind can handle, we might actually want to preserve the innocent until proven guilty, in a court of law part of the system, lest you to are said to be guilty of something idiotic.

Let me put it to you this way out_of_the_blue. I find you to be a complete and total idiot and I demand $100,000 for your wasting some of the air, and other resources on this planet. I further demand another $25,000 for having to put up with your illogical ravings on-line.

Please mail your payment in the next 10 days or I will be forced to have your ISP disconnect your access to the internet.

Re:

You are at least a month behind the news (or simply don't bother to do a research before making frivolous statements): there is a case that goes full throttle to the debates on merits. A bellwether trial in Pennsylvania. And you know what? No one from the anti-troll camp is "bitching," on the contrary, everyone is excited. Not the trolls though: those are the ones who do everything to derail the process.

Also: ever heard about Malibu Media v Fantalis et al? The defendant is diligently trying to get the case to the trial, but trolls (surprise!) sabotage.

Re:

simple solutions

I am surprised that anyone spends any more than say a nominal monthly fee for any form of porn.Porn distributers must concede to the realty that the days of video stores with blacked out windows and consumer's spending 20 bucks on a video are done. They have to create web based advertisement driven platforms to turn profit on the product. I would like to see what a free site like sublimedirectory.com does monthly in ad income. This guy is spending so much on legal fee's, and the effort of trolling. Why not link up with other distributers and all of them make good sites that have links to each others sites. Accumulate hits, cut your packaging and shipping costs, charge 9.99 a month for access to all material, I think music labels should quietly own torrent sites, then they could make money on ads, collect a database of all piracy and strategically control the availability of there product

Re: simple solutions

Because like the other cartels, they have failed to adapt to changing times.
The RIAA still to this day bemoans how CD sales are down.
The MPAA is sad that plastic disc sales are down.
They want to ignore that digital is the medium consumers want.

The pron industry helped push the adoption of VHS players, and did a brisk business selling chunky blobs of plastic that had a limited lifespan.
The pron industry then accepted more people had DVD players, and they kept the price at the same point - ignoring the lower costs to produce playback holder.
Now they are up in arms wondering why they can't get $50-60 a movie anymore.
Tubesites offering real people doing stuff are highly successful, the camera in cell phones rival what older porn was shot on. Well all Tubesites are good because they "steal" content from the big studios!!! And while some scenes from commercial porn are uploaded by some users, it isn't the main draw to the sites. It is the user generated content, with average people gaining fans and making money.

The iTunes model would be perfect for porn, and they would make much more money... but it is new and different and they are scared even in the face of all of the evidence it works, they still cling to the fear. So some lawyers imported a new tactic... and millions are flowing from people many of them innocent but afraid of having porn titles show up with their name in a Google search.

considering the number of these type of cases and the length of time they have been going, it's about time the trolls were not only called out but severely punished for what they are trying to do. on the occasions, of which i am sure there have been a very large number, that the courts have sided with the trolls, people have had extremely large fines awarded against them and on occasions, jail time. if it was good enough one way, it should be good enough in the other direction. this is needed to stop the almost always ridiculous waste of court time when nothing other than trying to extort money from mostly innocent people is the aim.